Applicant Z v Minister for Immigration and Multicultural Affairs - [2001] FCA 325

FEDERAL COURT OF AUSTRALIA
“Applicant Z” v Minister for Immigration & Multicultural Affairs [2001] FCA 325
MIGRATION – application for review of decision refusing protection visa – failure of tribunal to consider how applicant could either collect passport or obtain a new passport – failure of tribunal to consider whether applicant should be returned through Jordan to secure effective protection found to exist in Iraq – whether tribunal in error of law being either an incorrect application of the applicable law or an incorrect application of the law to the facts – whether tribunal failed to observe procedures
Migration Act 1958 (Cth) s 476
Minister for Immigration & Multicultural Affairs v Sameh [2000] FCA 578 at p 15, par 43, applied
Al Mansour v Minister for Immigration & Multicultural Affairs [2001] FCA 58 at pp 9-10, par 28, applied
Minister for Immigration & Multicultural Affairs v “C” [2000] FCA 845, referred to
Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469, referred to
“APPLICANT Z” v THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
W 109 of 2000
RD NICHOLSON J
30 MARCH 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W 109 of 2000

BETWEEN:

“APPLICANT Z”
APPLICANT

AND:

THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

RD NICHOLSON J

DATE OF ORDER:

30 MARCH 2001

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The decision of the Refugee Review Tribunal dated 6 June 2000 be set aside.
2.The matter be remitted to the Tribunal for reconsideration according to law.
3.The respondent pay the applicant’s costs of the application.
4.(a)       The name of the applicant in this matter be kept confidential and not be disclosed other than to the parties, their legal advisers, or officers of the Department of Immigration and Multicultural Affairs and the Refugee Review Tribunal.
(b)       This application proceed under the name of Applicant Z v Minister for Immigration & Multicultural Affairs and the cover of the file be endorsed with the terms of this order 4.
(c)       No person, other than a party to these proceedings or their legal advisers, officers of the Department of Immigration and Multicultural Affairs and the Refugee Review Tribunal, be given access to any document filed in these proceedings without leave from a judge.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W 109 of 2000

BETWEEN:

“APPLICANT Z”
APPLICANT

AND:

THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

RD NICHOLSON J

DATE:

30 MARCH 2001

PLACE:

PERTH

REASONS FOR JUDGMENT

The applicant seeks to review the decision of the Refugee Review Tribunal (“the Tribunal”) affirming a decision of the respondent to refuse to grant him a protection visa. The application has been brought pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”). The decision of the Tribunal in respect of his application was made on 6 June 2000.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Applicant Z v Minister for Immigration and Multicultural Affairs [2001] FCA 325
Case: [2001] FCA 325
Decision Date: 30 MARCH 2001

CaseChat Overview and Summary

The case involved an applicant, whose identity was to be kept confidential, challenging a decision by the Minister for Immigration and Multicultural Affairs. The applicant sought to overturn a decision by the Refugee Review Tribunal that had rejected his application for a protection visa. The applicant argued that the Tribunal had not properly considered his claim under Article 33 of the Convention, which pertains to the non-refoulement principle, due to his prior residence in Jordan and his family's ongoing residence there.

The primary legal issue before the court was whether the Tribunal had correctly applied the law in assessing the applicant's refugee status and whether it had adequately considered the potential applicability of Article 33 of the Convention. The court needed to determine if the Tribunal had erred in its decision-making process, specifically regarding the applicant's circumstances and the non-refoulement principle.

The court found that there was no basis to support the applicant's contention that the Tribunal failed to apply the relevant law by overlooking the possible application of Article 33 of the Convention. The court emphasised that while this consideration might be pertinent in a future review of the application, it did not impact the resolution of the current application. Consequently, the court concluded that the Tribunal's decision should be set aside and the matter should be remitted for reconsideration in accordance with the law.

The court issued several orders, including setting aside the decision of the Refugee Review Tribunal dated 6 June 2000, remitting the matter to the Tribunal for reconsideration according to law, and directing the respondent to pay the applicant’s costs of the application. Furthermore, the court mandated that the applicant's identity remain confidential and access to documents filed in these proceedings be restricted to certain parties and legal advisers, with any other access requiring leave from a judge.

Orders

Orders of the court

1. The decision of the Refugee Review Tribunal dated 6 June 2000 be set aside.

2. The matter be remitted to the Tribunal for reconsideration according to law.

3. The respondent pay the applicant’s costs of the application.

4. (a) The name of the applicant in this matter be kept confidential and not be disclosed other than to the parties, their legal advisers, or officers of the Department of Immigration and Multicultural Affairs and the Refugee Review Tribunal.

(b) This application proceed under the name of Applicant Z v Minister for Immigration & Multicultural Affairs and the cover of the file be endorsed with the terms of this order 4.

(c) No person, other than a party to these proceedings or their legal advisers, officers of the Department of Immigration and Multicultural Affairs and the Refugee Review Tribunal, be given access to any document filed in these proceedings without leave from a judge.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

No case was made for the applicant that the Tribunal failed to apply the applicable law in that it did not have due regard to the possible application of Article 33 of the Convention in favour of the applicant due to his prior residence in Jordan and the continuing residence of his family there. It may be (although it plays no part in the resolution of this application) that such aspect would require addressing on any further consideration of the application.Conclusion For these reasons I consider that the decision of the Tribunal should be set aside and the matter remitted to it for reconsideration according to law.

Ratio Decidendi

Legal Principle Established

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IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 109 of 2000

BETWEEN:	“APPLICANT Z” APPLICANT
AND:	THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	30 MARCH 2001
WHERE MADE:	PERTH

JUDGE:	RD NICHOLSON J
DATE:	30 MARCH 2001
PLACE:	PERTH